Polanski v Conde Nast Publications Ltd (HL)

Reference: [2005] UKHL 10; [2005] 1 WLR 637; [2005] 1 All ER 945; [2005] EMLR 287; The Times, 11 Feb 2005; The Independent, 16 Feb 2005

Court: House of Lords

Judge: Lord Nicholls of Birkenhead, Lord Slynn of Hadley, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell

Date of judgment: 10 Feb 2005

Summary: Defamation - Libel - Human Rights - Civil procedure - Civil evidence - evidence by video link - hearsay

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Appearances: Justin Rushbrooke QC (Appellant)  Aidan Eardley (Respondent) 

Instructing Solicitors: Schillings for the Claimant; Reynolds Porter Chamberlain for the Defendant

Facts

The Claimant brought libel proceedings against Vanity Fair over an article that alleged he had shamelessly attempted to seduce a lady in a New York restaurant whilst en route to his wife’s funeral following her brutal murder. He obtained permission from Eady J before trial to give evidence by video link (VCF) from France under CPR Part 32.3, on the ground that if he came to this country he would be extradited to the USA, from where he had fled in the 1970s whilst awaiting sentence for a criminal conviction. The Court of Appeal discharged the order on the basis that the general policy of the courts should be to discourage litigants from escaping the normal processes of the law rather than to facilitate this. They also held that the assumption on which the Judge’s order had been made, namely that if VCF evidence were refused the Claimant’s witness statement could have gone in anyway as hearsay evidence, was wrong. The Claimant appealed to the House of Lords.

Issue

Whether the Claimant should be allowed to give his evidence by VCF and whether allowing the Judge’s order to stand would bring the administration of justice into disrepute.

Held

Allowing the Appeal (by a 3-2 majority): (1) As between the parties the order was correctly made and the respondent would suffer no prejudice from the evidence being given by VCF. (2) There was a strong public interest in allowing a claim which had properly been made in this country to be properly and fairly litigated here. (3) The Claimant would continue to be a fugitive from justice irrespective of whether the VCF order was made. All a refusal would do would be to deprive him of his right to vindicate his civil rights in the courts of England and Wales. (4) In the circumstances there were acceptable grounds for acceding to a VCF order. Lord Slynn and Lord Carswell dissented on the basis that the public policy requirement of satisfying the criminal sentence was no less important than the desirability of Polanski suing in libel.

Comment

(1) The decision emphasises that there is no outlaw principle in this jurisdiction, whilst recognising that there may be cases where the affront to the public conscience is so great that an order of this kind should be refused. (2) It also reminds us that s.1 of the Civil Evidence Act 1995 means what it says: only in a truly exceptional case would it appear to be possible for a court to use its power under CPR 32.1 to rule out hearsay evidence that is otherwise admissible.